Determining the Amount of an Administrative Penalty

The amount of each Penalty to be assessed under 360 CMR 2.00 shall be determined as follows: (1) For each violation of a discharge standard found at 360 CMR 10.021: General Prohibitions, 360 CMR 10.023: Specific Prohibitions, or 360 CMR 10.024: Specific Discharge Limitations/Local Limits, of a discharge standard contained in a permit or order issued by the Authority, or of a National Pretreatment Standard applicable to the discharge, the amount of the penalty for each violation shall be determined as follows: (a) Four criteria shall be considered: violation magnitude; flow; culpability; and frequency. For each criterion, a numerical score shall be calculated and that score shall be multiplied by the weight factor for that criterion. The four weighted scores shall then be totaled and then multiplied by $10 to yield a penalty amount for each violation. The weight factors for each criterion shall be as follows: 1. Violation magnitude 2. Flow 3. Culpability 4. Frequency (b) The numerical scores for the criteria identified in 360 CMR 2.33(1)(a) shall be calculated as follows: 1. Violation Magnitude. The violation magnitude score for a violation of 360 CMR 10.024(2), 360 CMR 10.023(3) and (10), of a limit contained in a permit issued by the Authority, and of a limit contained in a National Categorical Pretreatment Standard shall be calculated based on the magnitude the violation exceeds the standard it must meet, according to the following chart: 2.33: continued Ratio of Violation Over Limit Score (how many times the violation was greater than the limit) 1.01 - 1.49 1.5 - 1.99 2.0 - 2.49 2.5 - 2.99 3.0 - 3.49 3.5 - 3.99 4.0 - 4.49 4.5 - 4.99 5.0 - 5.49 5.5 and above A violation of 360 CMR 10.021: General Prohibitions, 360 CMR 10.023(4), (5), (7), (8), (9), (12), (13), (14), (15), (16), (17), (18), (20) or (21), and 360 CMR 10.024(1) shall receive an automatic violation magnitude score of 10. A violation of 360 CMR 10.023(1), (2), (11) or (19) shall receive a violation magnitude score equal to the flow score it receives. A violation of 360 CMR 10.023(6) shall receive the following score: Standard Units Score 5.0 - 5.4 or 12.1 - 12.5 4.0 - 4.9 or 12.6 - 13.0 below 4.0 or above 13.0 2. Flow. The flow score shall be calculated, based on the number of gallons of wastewater discharged (known or estimated) by the violator on the day of the violation, according to the following chart: Gallons Discharged Score up to 1,000 1,001 - 5,000 5,001 - 15,000 15,001 - 25,000 25,001 - 35,000 35,001 - 45,000 45,001 - 55,000 55,001 - 65,000 65,001 - 75,000 75,001 and above The flow chart in 360 CMR 2.33(1)(b) shall not apply to a violation of 360 CMR 10.021: General Prohibitions, or 360 CMR 10.023(4), (5), (7), (8), (9), and (13) through (21); such violation shall receive an automatic flow score of 10, regardless of the gallons discharged. 3. Culpability. The culpability score shall be determined on the basis of how culpable the violator was for the discharge violation. A scale of zero to ten shall be used, with zero being no culpability and ten being the highest level of culpability. Factors to consider in determining the culpability score include: a. Score of 10: Intentional action or inaction causing the discharge violation. Examples may include: discharging without pretreatment; not operating pretreatment; intentionally operating pretreatment or production equipment improperly or without appropriate maintenance; continued knowing violations; no pretreatment for the violated pollutant; intentionally bypassing pretreatment; dumping untreated vats, containers or other vessels; frequent spills or upsets without having taken measures to prevent reoccurrence; untrained or unqualified staff; inadequate number of pretreatment staff; no meaningful attempts to prevent the violation. b. Score of 7 to 9: Grossly inadequate or improper action or inaction causing the discharge violation. Examples may include: clearly inadequate pretreatment; grossly inadequate or improper operation or maintenance of pretreatment or production equipment; gross production or pretreatment errors; frequent spills or upsets; poorly or infrequently trained staff; pretreatment staff unavailability; a history of violations with clearly inadequate attempts to prevent the violation. 2.33: continued c. Score of 3 to 6: Inadequate or improper action or inaction causing the discharge violation. Examples may include: inadequate pretreatment; inadequate or improper operation or maintenance of pretreatment or production equipment; occasional production or pretreatment errors; rare spills or upsets; recent change in production or pretreatment; a history of violations with minimal and inadequate attempts to prevent the violations. d. Score of 1 or 2: Inadvertent action or inaction causing the discharge violation. Examples may include: rare spill or production or pretreatment error that would be unanticipated during the normal course of events but that is not an upset; a history of few violations and reasonable attempts to prevent violations. e. Score of 0: One-time unavoidable accident or an upset for which an affirmative defense is not available. 4. Frequency. The frequency score shall be calculated on the basis of how often the violation of the particular pollutant requirement occurred over a period of time as follows: Percentage in Violation Score up to 10% 11 - 25% 26 - 40% 41 - 55% over 55% The period of time shall be from the first to last date for which a penalty is assessed in the Penalty Assessment Notice, unless the Penalty Assessment Notice uses another time period and states why a greater or lesser time period is used. The percentage shall be based on those days for which the nature of the discharge at issue is known. (c) A penalty may be increased over the amount calculated according to 360 CMR 2.33(1)(a) and (b) for one or more of the following reasons: 1. to make the violator's failure to comply more costly than if the violator had complied; 2. to help to deter future noncompliance by the violator or others; 3. to compensate the Authority or others for damages suffered or costs incurred as a result of each violation, including costs incurred by the Authority for activities undertaken to assess the penalty and assure compliance (such as monitoring and inspecting costs); 4. if previous penalties imposed on the violator by the Authority, or by a court for violation of an Authority requirement, did not assure compliance by the violator; and/or; 5. to compensate for other damages to the public health, safety, welfare, or the environment, caused by the violation. If more than one violation is assessed a penalty in a Penalty Assessment Notice, the increase may be applied either to individual penalty amounts or to the total penalty assessed in the Penalty Assessment Notice. In no event shall such increase result in a single violation being penalized in excess of $10,000.00. (d) 360 CMR 2.00: Appendix A contains a chart that may be used to calculate a penalty pursuant to 360 CMR 2.33. 360 CMR 2.00: Appendix B contains examples of penalty computations. (2) A $10,000 penalty per violation shall be assessed for intentionally: (a) providing false information or falsifying or misrepresenting records; (b) rendering inaccurate or tampering with any monitoring device or method used or required by the Authority; (c) manipulating sampling, inspecting, or other monitoring to hide actual or potential violations of any Requirements; (d) violating 360 CMR 10.025: Dilution Prohibition; (e) violating an enforcement order issued by the Authority; and (f) discharging without a currently valid permit. For purposes of 360 CMR 2.33(2), “intentionally” means knowingly intending to do the act that constitutes the violation, not that the Person knowingly intended to violate the requirement. When a violation listed in 360 CMR 2.33(2)(a) through (f) is committed unintentionally, the amount of the penalty for that violation shall be determined under 360 CMR 2.33(5). 2.33: continued (3) The following penalties shall be assessed for a failure to file a document: (a) A $5,000 penalty shall be assessed for failing to file an application, report, or other document required by an Authority regulation or Permit unless a different amount is specifically noted in a Group Permit. Late filing of such a document shall be penalized $250 for each working day late, up to $5,000 for 20 or more working days late, unless a different amount is specifically noted in a Group Permit or Combined Permit. (b) A $10,000 penalty shall be assessed for failing to file an application, report, or other document required by a Notice of Noncompliance, Order, or decision issued to the Person. Late filing of such a document shall be penalized $500 for each working day late, up to $10,000 for 20 or more working days late. (4) A violation of 360 CMR 10.012: Access to Facilities, 360 CMR 10.016: Gas/Oil Separators, 360 CMR 10.017: Grease Traps and Grease Interceptors or 360 CMR 10.027: Septage Origination Requirements shall be penalized $1,000 for the first violation in a two-year period, $5,000 for the second violation in a two-year period, and $10,000 for the third and each subsequent violation in a two-year period. The penalty may be increased for one or more of the reasons listed in 360 CMR 2.33(1)(c), provided the penalty for each violation does not exceed $10,000. (5) Any violation not otherwise cited in 360 CMR 2.33 shall be penalized based on a consideration of the following factors: (a) The violation's actual and/or potential impact on public health, safety, welfare, and the environment. (b) The actual and/or potential damages suffered, and actual and/or potential costs incurred, by the Authority, or by any other person as a result of the violation. (c) Whether the violator took steps to prevent the violation. (d) Whether the violator took steps to promptly come into compliance after the violation. (e) Whether the violator took steps to remedy and mitigate whatever harm might have been done as a result of the violation. (f) Whether the violator previously failed to comply with any regulation, order, Permit, or approval issued or adopted by the Authority, or any law which the Authority has the authority or responsibility to enforce. (g) Whether the violator derived an economic benefit from its failure to comply. (h) That the penalty is sufficient to deter future noncompliance by the violator and/or by other persons. (i) The public interest. (j) Any other factors that reasonably may be considered in determining the amount of a penalty, provided those factors are set forth in the Penalty Assessment Notice. (6) A penalty calculated pursuant to 360 CMR 2.33(1) through (5) may be reduced if a violator shows by a preponderance of the evidence that payment of the penalty would make it economically unfeasible for the violator to continue operations. The reduction may be applied either to an individual penalty amount or to the total penalty assessed in a Penalty Assessment Notice. If a penalty is so reduced, the Authority may require the violator to undertake a non-monetary alternative if such an alternative reasonably may be undertaken by the violator.